Victims are grilled in military sex-assault investigations

Updated 11:26 pm, Saturday, June 15, 2013

Photo: Max Whittaker, Max Whittaker/Prime

Image 1of/3

Caption

Close

Image 1 of 3

Virginia Messick was one of the recruits victimized at Joint Base San Antonio-Lackland by Staff Sgt. Luis Walker, who is now serving 20 years in prison. Our readers have various opinions on our continuing series, "Twice Betrayed." less

Virginia Messick was one of the recruits victimized at Joint Base San Antonio-Lackland by Staff Sgt. Luis Walker, who is now serving 20 years in prison. Our readers have various opinions on our continuing ... more

Photo: Max Whittaker, Max Whittaker/Prime

Image 2 of 3

Virginia Messick, who said she was raped by her Air Force training instructor, in her apartment in Marysville, Calif., Feb. 3, 2013. Messick is the first victim of a still-unfolding sexual assault scandal at Lackland Air Force Base in Texas to speak publicly about what she has endured. less

Virginia Messick, who said she was raped by her Air Force training instructor, in her apartment in Marysville, Calif., Feb. 3, 2013. Messick is the first victim of a still-unfolding sexual assault scandal at ... more

Photo: MAX WHITTAKER, New York Times

Image 3 of 3

Virginia Messick, who said she was raped by her Air Force training instructor, has now encountered the VA"s slow moving bureaucracy in effort to get a disability rating.

Virginia Messick, who said she was raped by her Air Force training instructor, has now encountered the VA"s slow moving bureaucracy in effort to get a disability rating.

Photo: MAX WHITTAKER, New York Times

Victims are grilled in military sex-assault investigations

1 / 3

Back to Gallery

Seven months after an Air Force recruiter's assistant told investigators her boss sexually assaulted her in an office supply room, the young woman was summoned to meet his defense attorneys.

Although she had no lawyer to represent her, and no prosecutor accompanied her to the interview, she felt comfortable entering their office alone in January at Joint Base San Antonio-Lackland.

Prosecutors told her it was routine. And she anticipated the defense questions to roughly track the same territory she covered with prosecutors, centered on the facts of her account.

Not so in the military justice system, in which sexual assault victims often face hours of questions from defense attorneys outside the presence of prosecutors with no one to advise them on their legal rights, a common practice that has no match in civilian criminal courts.

The defense attorney leading the questions, Maj. Willie Babor, soon took the interview to personal ground.

Was she aware the defendant, Tech. Sgt. Jaime Rodriguez, had a family and children? Babor asked. Did she know her accusations against Rodriguez carried the death penalty? How would she feel about his children growing up without a father?

Most Popular

She was shocked. She was even more confused when Babor started asking for details of her sexual history and problems in her marriage.

Before the three-hour interview was over, Babor had prompted the 20-year-old airman to name her previous sexual partners, identify anyone who'd witnessed her drink alcohol underage and sign a memo stating Rodriguez used no “force” against her — a term she equated with violence that causes injury, she said.

“I had no idea what questions I didn't have to answer,” said the Air Force analyst, identified as Victim 9 in Rodriguez's trial last week. “It was very overwhelming. I just wanted to crawl under a rock.”

Her case illustrates a little-known aspect of the military judicial system that often grants defense lawyers a degree of access to victims that is almost unheard of in civilian criminal courts, according to military law experts, victims and advocates.

Many victims also face intrusive and irrelevant questions at evidentiary hearings where commanders, who are not legally trained judges, can grant wide latitude to defense attorneys seeking to impeach a witness's credibility.

The impact on victims can be humiliating. Some said interviews with defense attorneys shook their conviction to pursue charges and forced them to relive the sexual assaults they already had detailed in written statements and discussions with investigators and prosecutors.

“The rights of victims are commonly being trampled,” said Nancy Parrish, president of the victim advocacy group Protect Our Defenders. “It's intimidating for the victim, and without counsel of their own, they can be re-victimized.”

The Pentagon faces a deepening scandal over rampant sexual assault in its ranks and the mistreatment of victims. Federal lawmakers are battling over how far to go in imposing reforms.

More Information

A seven-month San Antonio Express-News investigation presented in May documented a pattern of psychiatric discharges for troops who disclosed assaults while some commanders stifle reports and perpetrators often evade punishment.

Much of the controversy has focused on how few cases reach criminal prosecution.

Fear of retaliation and distrust of the military justice system help suppress reporting of the crimes. An estimated 89 percent of victims do not disclose unwanted sexual contact, compared with about 65 percent who do not report in the civilian system. Of the 3,374 reports of sexual assault last year involving 2,900 accused offenders, only 302 went to courts-martial.

But the difficulties victims face in the cases that do reach courts-martial has been largely overlooked. Military officials acknowledge they must increase victim confidence in the justice system if they are to stem sexual assaults in the armed forces, estimated at 26,000 in 2012.

At a congressional hearing in January, Lt. Gen. Richard Harding, the Air Force judge advocate general, said one in three victims who initially agreed to participate in prosecutions dropped out of the process last year before their cases reached trial.

“I believe that, had these victims been represented by their own attorney, many of them would not have declined to cooperate in holding the offender accountable,” Harding said at the hearing.

Evidence rules ignored

Military law requires equal access to witnesses for both the defense and prosecution, and a similar rule applies in civilian courts. In both systems, neither defense attorneys nor prosecutors can block access to witnesses.

However, the interpretation of those rules and how that plays out in practice in the civilian and military realms is starkly different, experts said.

“In the military system, judges interpret that as requiring victims to make themselves available to defense counsel for some sort of interview,” said Roger Canaff, a former civilian prosecutor who now is an adviser to military prosecutions. “I'm not aware of any civilian jurisdiction where there is a common custom or a general requirement that victims be interviewed by defense counsel prior to trial.”

Bexar County First Assistant District Attorney Cliff Herberg said civilian prosecutors tell victims they're free to speak with defense counsel. But prosecutors also emphasize they want to be present for any questions. Such interviews are “almost unheard of” Herberg said.

Military victims also face evidentiary hearings to determine whether cases proceed to courts-martial. Commanders who are not legally trained as judges serve as investigating officers who oversee the hearings.

Evidentiary hearings “often involve inadmissible questions and oftentimes the investigating officer is not familiar with the rules of evidence,” Canaff said.

While some states have similar civilian proceedings, most do not. Legally trained judges who oversee those preliminary hearings are better equipped than investigating officers to determine whether questions from the defense stray too far from the relevant facts, Canaff said.

As a result, advocates said victims can face questions about childhood sexual abuse, their sexual orientation and the number of sexual partners.

“They're being harangued by defense counsel with no protection,” said Parrish, with Protect Our Defenders. “These questions are extremely offensive and have no bearing on whether the accused committed sexual assault that night.”

Is it fair?

Military defense attorneys say the idea behind the interviews is to provide both sides with fair access to evidence.

Prosecutors represent the government — not victims. And prosecutors must be careful not to be perceived as providing victims with legal advice or obstructing justice, experts said. For that reason, military prosecutors typically do not attend defense interviews with victims.

In the view of some prosecutors, those meetings also can provide a glimpse of the defense strategy and benefit the case against the accused. It also may allow victims to gain some comfort with the questions they will face in front of jurors and make them better witnesses on the stand.

Retired Army Lt. Col. Geoffrey Corn, a professor at South Texas College of Law in Houston, said defense attorneys have an ethical obligation to zealously represent clients, and that means rooting out information that may shows inconsistencies in a witness' account or bad motives.

Other military law experts said granting legal standing to attorneys for victims is dangerous because it creates an appearance that the victim was conclusively abused and the accused is presumptively guilty.

In response to widespread sexual abuse of young recruits at Lackland, the Air Force started a pilot program in January that provides lawyers for victims.

Known as Special Victims Counsel, the group of attorneys so far has helped about 300 victims. Attorneys in the program now are struggling to establish how far they can go in court to represent their clients.

Sen. Kirsten Gillibrand, D-N.Y., included a subcommittee measure last week in the National Defense Authorization Act that would create a Special Victims Counsel program in every branch of the service. The proposal would allow victims to request legal representation to protect their rights during the process.

“We must ensure that victims have counsel to protect their interests throughout this process,” Gillibrand said. “The only way out of this crisis is to create more trust in the system so more victims are not afraid to come forward.”

Air Force Maj. John Bellflower, who was appointed to represent Victim 9 in Rodriguez's case after she spoke to Babor, was kicked out of the courtroom before a pretrial hearing on a defense request to interview her again.

Although the judge didn't require another interview, Bellflower said it was unfair that his client had no voice in the decision. He believes the system puts too much pressure on victims to grant such interviews.

The law “says both sides should have equal access to witnesses in the case. But the government doesn't own her,” he said. “They have pieces of evidence — documents that they can turn over. She is not a piece of paper. She has rights.”

Babor declined to comment on the case but complained to Judge Col. Donald Eller Jr. at a hearing last week that prosecutors were improperly portraying his tactics as unethical.

Defense Department studies show the prosecution process exacts a toll on victims. A mere one in three troops who reported unwanted sexual contact to military authorities last year said they would make the same decision again, a Pentagon survey shows.

Intimidating victims

Kimberly Hanks testified as the victim in a now-infamous case at Aviano Air Base, where a general tossed out a jury's conviction of aggravated sexual assault. Hanks spent 4.5 hours in interviews with attorneys for the accused pilot, Lt. Col. James Wilkerson.

His first attorney questioned Hanks about her divorce and sexual history, including the age at which she became sexually active. Hanks, a 49-year-old physician assistant who works as a civilian contractor, declined to answer those questions because she viewed them as irrelevant to her case. The attorney kept pressing.

“They try to intimidate you,” Hanks said.

A second attorney for Wilkerson, Frank Spinner, brought a forensic psychologist to a follow-up interview, another common tactic. The psychologist asked similar questions.

After Hanks again declined to answer questions about her sexual history and ended the interview to return to work, Spinner won a pretrial hearing to explore what she called “the floating head theory.”

The contention was that Hanks had superimposed the head of a previous attacker on Wilkerson. A judge ultimately did not allow Spinner to ask the same questions in front of jurors, she said. But Hanks said things might have gone the other way if she had not had the benefit of life experience to resist the intrusive questions.

“I'm not the normal person who goes through this. I'm older,” she said. “They were very frustrated. I think they're used to young victims answering those questions.”

Some victims said prosecutors encouraged or even pressured them to speak to the defense. Rebekah Lampman, an Iraq war veteran, still was at a trauma center in Temple recovering from a rape by a fellow Fort Hood soldier when his defense attorney called her cellphone asking questions.

Although a prosecutor in her case said an interview wasn't mandatory and Lampman could wait until she finished treatment, the prosecutor pressured her to quickly submit to questions, she said.

The prosecutor “kind of used a little bit of intimidation saying we have to get this done,” Lampman said.

Virginia Messick was among 10 recruits victimized at Lackland by Staff Sgt. Luis Walker, a basic training instructor now serving 20 years in prison.

Like other victims, prosecutors told Messick that, while not mandatory, it was “a good idea” to give an interview to Walker's attorneys before trial. She said they asked about her alcohol use, difficulties with her ex-husband and any sexual experiences in a previous job as a bartender.

She questioned the wisdom of talking to them and felt like they used it to manipulate her on the witness stand.

The woman identified as Victim 9 in Rodriguez's case, who now is 22, said her experience with defense attorneys made her feel like she was the one on trial. It was only later, after talking to prosecutors and her attorney, that she fully grasped the potential impact of the memo Babor led her to sign.

“He never provided me with the legal definition of force,” she said. “He knew exactly what I thought force meant.”

Although defense attorneys tried and failed to introduce the memo at trial, she spent months fearful that they would dredge up intimate and embarrassing details of her life in front of jurors.

“There are reasons why victims don't want to come forward, because they fear they're going to get treated like that,” she said.